Wednesday, March 28, 2012

How Will The Liberal Justices Spin This?

Randy Barnett, Constitutional legal theorist par excellence, has been a leading force for the last two years in opposing Obamacare. It was from his full page interview in July, 2010, in the Wall St. Journal  where most people first heard the argument that Obamacare constitutes a Constitutionally illegitimate commandeering of the people. Randy, whom I’ve been privileged to know since he was a student at Harvard law in the 1970s, has also made much grist for the anti-Obamacare mill with the argument this healthcare legislation is LITERALLY “unprecedented,” and therefore can by definition have no appropriate precedent in SC case law.
Over the last few days, Barnett has commented on what he sees as pro-active anticipation of Supreme Court failure by members of the Left. Dahlia Lithwick (senior editor at, covering the courts) has argued that Scalia is bound to his Raich precedent in ruling in favor of the PPACA, even misquoting Barnett to make that claim--actually making Barnett appear to say the opposite of what he actually said. Meanwhile Linda Greenhouse (who has written for the New York Times and lectures at Yale Law) is arguing the PPACA is “an easy case.” That is, that the Supreme Court has devoted 3 days and 6 hours--something not done in over 50 years--to an easy case; an easy case where multiple federal judges have ruled inconsistently, all generating long, detailed opinions. An easy case where law professors who two years ago were laughing and predicting an 8-1 decision are now fretting and hoping for a 5-4 decision in the favor of their Progressive ideal.
Randy makes quite the argument that this is all maneuvering, similar to what went on post-Citizens United. There is an expectation they will lose--Tuesday, the oral argument on the individual mandate could not make any on the Left sanguine--and the goal has therefore become to lay the groundwork so that, if they lose, they can blame it on politics and conservative judicial activism.
And that leads me to wonder if the shoe might not as easily be put on the other judicial foot.
For the fact of the matter is, there IS a sense in which “this is easy.” Many court cases are complex, filled with technical legal issues that only legal experts can understand. But at root, the individual mandate portion of the PPACA legal challenge is easy. The Constitution creates a federal government of limited and enumerated powers. That must imply there are some things it cannot do. Its powers are not plenary. But IF Obamacare is found Constitutional...if, despite the federal government’s powers being limited to what is listed in Article I, section 8, and added to by the Reconstruction amendments...if nonetheless the PPACA can force every American to purchase a private contract whose content is mandated by the federal government, the easy question, with the very hard answer, is “what can’t the government do.” What is the limiting principle? As Chief Justice Roberts put it “whether or not there are going to be limits on the federal power” is the key issue in this case. As Justice Scalia noted, “The federal government is supposed to be a government of limited powers. And that’s what all this questioning has been about.” 
And that’s my point: If there ARE limits to federal power after Obamacare, they should be easy to list, easy for examples to be presented. And yet despite what must have been extensive prep--it’s not as if this question could not have been predicted--Solicitor General Donald Verrilli had difficulty articulating it, giving even one little example to calm the minds of Scalia, Thomas, Kennedy, Roberts, and Alito.
This IS a defining Constitutional principle. “The government is one of delegated, enumerated, and therefore limited powers” is not some idiosyncratic newly developed doctrine associated only with the members of the Constitution in Exile. So whether they write the main opinion or the dissent on this case, the liberal Justices--Breyer, Sotomayor, Ginsburg, and Kagan--will need to articulate such a limiting principle even if it escaped the abilities of the Solicitor General or else they will themselves appear to be politically motivated, Democratic hacks, rank activists concerned only for results rather than principle. 
Win or lose, the liberal judicial opinion issued this coming June from the Supreme Court will be an amazing document. After (unfairly in my opinion) taking it on the chin for Citizens United, it will be interesting to watch the conservative members of the Court to sit back and observe Republican interest groups use the liberal opinion as fodder to generate “out of control activists” letters to raise funds to oppose Obama. Obama tried to goose the Court at his 2010 State of the Union address when they dared to oppose him on Citizens United. Now we’ll take a gander at what Obama will face in the fall after this decision.